Cummins v. Colgate Properties Corp.

• Court: New York Supreme Court
• Writing for the Court: EAGER
• Citation: Cummins v. Colgate Properties Corp., 153 N.Y.S.2d 321, 2 Misc.2d 301 (N.Y. Sup. Ct. 1956)
• Decision Date: 31 January 1956
• Parties: Faith CUMMINS, Plaintiff, v. COLGATE PROPERTIES CORP., Anna Chieco, Luigi Lupinacci and Anna Lupinacci, Defendants.

Page 321

153 N.Y.S.2d 321

2 Misc.2d 301

Faith CUMMINS, Plaintiff, v. COLGATE PROPERTIES CORP., Anna Chieco, Luigi Lupinacci and Anna Lupinacci, Defendants.

Supreme Court, Special Term, Westchester County, Part II.

Jan. 31, 1956.

Affirmed July 2, 1956. See 153 N.Y.S.2d 608.

Bernard Margolis, New York City, for plaintiff.

Joseph V. McKee, New York City, for Colgate Properties Corp. (John J. Boyle, New York City, of counsel).

Fasso & Belserene, New Rochelle, for Anna Chieco.

EAGER, Justice.

This action is one to enforce the provisions of a restrictive covenant claimed to generally bind the lots situate within an area in the City of New Rochelle laid out and known as 'Neptune Park'. It appears that in 1891, all the land within this area was owned by one Adrian Iselin, Jr., and that, on June 1, 1891, he caused to be filed in the office of the County Clerk of Westchester, a map of the land, dated March, 1891, and entitled a 'Map of Neptune Park adjoining the Village of New Rochelle, belonging to Adrian Iselin, Jr.' By said map, the land was subdivided into building lots, and in particular, there were set forth thereon 96 such lots numbered 1 to 96 inclusive. Iselin, commencing in 1891, proceeded to sell the lots, and all of his deeds to lots sold prior to July 3, 1923, contained restrictive covenants to the effect that the grantees and their heirs and assigns should not at any time thereafter 'erect, maintain or permit upon any part of the said premises, any tenement house, nor any dwelling house other than a private dwelling to be occupied by not more than two families'; provided, however, that, the covenant in the deeds conveying seven of the lots restricted the use thereof to a private dwelling to be occupied by not more than 'one family'. As of 1923, Iselin had sold and conveyed 85 of the 96 numbered lots, and all were sold and conveyed subject to the covenant, and on July 3, 1923, the remaining 11 numbered lots and an unnumbered lot in the Neptune Park area, together with other properties owned by him, were conveyed by him to Adlin Corporation. The deed to Adlin Corporation did not contain any restrictive covenant, but it appears that this corporation was a real estate holding corporation owned and controlled by Iselin. It further appears that this corporation proceeded to dispose of the lots, and that its deeds, on the sale and conveyance of the same, contained this very same restrictive covenant. Thus, all of the lots in Neptune Park were ultimately conveyed subject to the covenant, excepting, however, two unnumbered lots, and it does not appear what happened to them.

The plaintiff owns Lots 64, 65 and the northerly forty feet of Lot 66 in the said Neptune Park, and these premises are improved by a one-family dwelling occupied by plaintiff and her husband. The defendant Colgate Properties Corp. (hereinafter referred to as 'Colgate') has acquired and owns portions of Lots 37, 38 and 39, and plans the erection and maintenance thereon of a six-story apartment house type building designed to contain 66 separate apartments for separate family occupancy, together with a 44 car parking lot. The defendant Chieco owns Lot No. 67 and a portion of Lot No. 66; and the dwelling thereon, though originally constructed for use by two families, has been converted to contain at least three separate apartments and is now used by at least three separate families.

The respective properties of the parties are situate in Neptune Park and the respective titles come by way of mesne conveyances starting with deeds out of Iselin, which deeds contained the restrictive covenant in question. The covenant in plaintiff's deed restricts occupancy of any dwelling house erected on the premises to one family, while the wording of the covenant in the deeds from Iselin under which the defendants Colgate and Chieco claim is such as to restrict occupancy of any dwelling house on the premises conveyed to not more than two families. The plaintiff claims that the proposed erection and maintenance by the defendant Colgate of the apartment house on its premises and the conversion and use of the dwelling on the premises of the defendant Chieco for residency by three or more families should be restrained as in violation of the covenant. It is clear that the erection and maintenance of an apartment house upon the premises of the defendant Colgate would violate the provisions of the covenant barring the erection and maintenance of a 'tenement house' on the property, and that the defendant Chieco's present use of his premises for three family occupancy is in violation of the provisions of the covenant limiting the use of any dwelling thereon to two families. The defendants contend, however, that the covenant inserted in the Iselin deeds was a personal one running solely in favor of Iselin and that it is not enforceable by his grantees.

In expressing the grounds for this decision, it does not seem necessary that the covenant be here set out in full. It is true that the covenant is inartistically drawn and, as a whole, is somewhat ambiguous, but it clearly does prohibit the erection upon lands of defendants of an apartment house and the occupancy of a house or dwelling on such lands by more than two families. I do note that the covenant is stated to be by the party of the second part (the grantee from Iselin) 'and his heirs and assigns * * * to and with the said Adrian Iselin, Jr., his heirs, executors and administrators' and that there is nothing in the working thereof indicative of the intent that it is imposed for the benefit of the assigns or grantees of said Iselin. Thereore, the plaintiff may not enforce the covenant on the theory that she is a third party beneficiary of the contract. See, Hungerford v. Ocean Gardens, 2nd Dept., 283 App.Div. 797, 128 N.Y.S.2d 87, affirmed 308 N.Y. 765, 125 N.E.2d 114.

Notwithstanding that the covenant in wording is personal to the grantor and that, therefore, the plaintiff does not have the right to maintain an action at law thereon as upon a contract made for her benefit, she may be entitled to relief in equity. If the covenant was imposed as a part of a general scheme of development of Neptune Park and in furtherance of a plan intended to benefit the entire tract, the plaintiff is entitled to the aid of equity in enforcing the covenant. This seems to be clear. (See, Pomeroy-Equity Jurisprudence, (5th Ed.) Section 1295, page 853). Certain decisions in this state have granted relief to subsequent grantees on the theory that, under such circumstances, there are implied mutual negative easements for the benefit of all purchasers of land in the tract taking subject to the covenant and that a purchaser and his grantees, as owners of a dominant tenement, are entitled to the aid of a court of equity to enjoin interference with their rights. See, Silberman v. Uhrlaub, 116 App.Div. 869, 102 N.Y.S.2d 299; Landsberg v. Rosenwasser, 124 App.Div. 559, 108 N.Y.S. 929; Trustees of Columbia College v. Lynch, 70 N.Y. 440. In any event, the Court of Appeals has expressly held that under such circumstances 'the covenant is enforceable by any grantee as against any other, upon the theory that there is a mutuality of covenant and consideration, which binds each and gives to each the appropriate remedy.' Korn v....